The Nevada Supreme Court recently approved amendments, effective September 30, 2012, to the provisions of NRCP 16.1(a)(2) (“Disclosure of Expert Testimony”) concerning what a party to litigation must disclose about their expert witnesses. One principal purpose advanced by these amendments is to improve the timely disclosure of “non-retained” expert opinions in advance of trial. Another purpose was to define the scope of rebuttal evidence.

Retained vs. non-retained experts
As a preliminary matter, disclosure requirements for “retained” or specially hired or employed experts have not changed. See NRCP 16.1(a)(2)(B). Retained experts must still prepare written reports and disclose other information as previously required.

istorically, however, the same disclosure requirements for retained expert witnesses did not apply to other types of experts with specialized knowledge. As a result, non-retained experts, such as treating physicians, for example, would often render opinions at trial that had not been timely or fully disclosed. Where the economics of the case permitted, deposing the treating physician usually alleviated this problem. However, in cases of limited economic value, it was often not practical or reasonable to take every treating physician’s deposition. With no disclosure requirements for non-retained experts under the old Rule 16.1(a)(2), surprise at trial became unavoidable, often creating unfair advantage for one side or the other.

To address this increasingly prevalent problem and to foster the public policy that trials be conducted on the merits of the case, on October 26, 2011, ADKT 472 was proposed by Justice Mark Gibbons. Federal courts had previously recognized the lack of fairness presented by the absence of full disclosure requirements for the “non-retained” expert and adopted amendments to their rules to address the problem. FRCP 26 requires that the subject matter and a summary of the facts and opinions which the non-retained expert witness is expected to testify about be disclosed, even in the absence of a written report. The recent amendments to NRCP 16.1(a)(2)(B), adopted as an outgrowth of ADKT 472, now mirror these federal requirements. The Nevada rule additionally requires disclosure of the non-retained expert’s qualifications, and his or her fees for providing testimony at deposition and trial.

While there is no specified format for the manner in which this information should be produced, from a practice standpoint, these additional requirements may be satisfied by producing the non-retained expert’s curriculum vitae and fee schedule. The non-retained expert does not have to prepare the actual disclosure, nor is he or she required to produce documentation. What is critical is that the non-retained expert’s opinions are fully disclosed, at the same point in time that expert disclosures are due.

Failure to disclose an expert’s opinion may result in its exclusion at trial. If, for example, the disclosure is that a physician will testify in accordance with his or her office chart, the chart should encompass all opinions to be given at trial. Since this is often not the case, to avoid exclusion at trial, the attorney should list as part of his or her client’s disclosures any additional opinions not specifically identified in the treating physician’s medical records.

Although there are also no minimum requirements for what constitutes a non-retained expert’s qualifications, such information as confirmation of the non-retained expert’s license and date of licensure, area of practice, address, and telephone number should be included in the NRCP 16.1(a)(2) disclosures. Other information, such as the non-retained expert’s education, can be accessed on websites of professional organizations and be included in the disclosure.

Finally, there may be certain types of experts whose testimony exceeds the scope of what would be reasonably expected for their areas of expertise. Examples would include a physician who is asked to address multiple physicians’ treatments of a plaintiff or who opines about the standard of care in a medical malpractice case. These “hybrid” expert’s opinions may effectively turn the non-retained expert into a retained expert, necessitating preparation of a written report to avoid exclusion of certain or all of his or her testimony at trial. If preparation of a report is not practical in a given case, a party may petition the court or discovery commissioner to relieve the expert from having to do so.

Rebuttal evidence and experts
ADKT 472 also amended NRCP 16.1(a)(2)(C) to codify the scope of rebuttal evidence as embodied in the pertinent federal cases. Although the federal rules do not specifically set forth the parameters of rebuttal expert testimony, federal case law provides guidance. Rebuttal evidence is “that which explains, repels, contradicts, or disproves evidence introduced by [an adverse party] during his case in chief.” Levenson v. Lake-To-Lake Dairy Co-op, 76 Ill. App. 3rd 526, 394 N.E. 2d 1359 (1979). Section (C)(ii) now requires that evidence intended solely to contradict or rebut evidence on the same subject matter identified by another party in its initial disclosure be made within thirty days after the other party’s initial disclosures.

These rationales are also codified in NRCP 16.1(a)(2)(C)(ii): the rebuttal expert disclosure deadline “. . . does not apply to any party’s witness whose purpose is to contradict a portion of another party’s case in chief that should have been expected and anticipated by the disclosing party or to present any opinions outside of the scope of another party’s disclosure.”

As an illustration of the foregoing, liability, causation, and damages are commonly parts of a plaintiff’s case in chief that a defendant should expect to defend against in its case in chief. As a general rule, if a party cannot prove or defend its case without an expert, then the expert should be designated as an initial expert, rather than as a rebuttal expert. See In Re Apex Oil Co., 958 F. 2d 243, 245 (8th Cir. 1992).

Rebuttal disclosure is also not to be used by a party to identify the “lion’s share” of its expert information. See Sierra Club, Lone Star Chapter v. Cedar Paint Oil Co., Inc., 73. F. 3d 546, 571 (5th Cir. 1996). Before the current amendments to NRCP 16.1(a)(2)(C), defendants commonly only disclosed their rebuttal experts under the guise of disproving the plaintiff’s initial expert’s testimony. However, these rebuttal experts were often the only experts the defendants offered. In many cases, their testimony exceeded the scope of what the plaintiff’s experts’ had testified to previously.

The amendments to the rebuttal disclosure requirements have hopefully ended this practice. Now, the rules mandate simultaneous disclosure of the bulk of expert testimony by both sides. This is particularly applicable where the testimony encompasses evidence relevant to the elements of a plaintiff’s case in chief. When in doubt, parties should disclose their experts as initial experts. This way all parties are assured of being able to call their experts in their case in chief, and not risk exclusion of any part of their experts’ opinions as improper rebuttal evidence.

Bonnie Bulla is the Discovery Commissioner for the Eighth Judicial District Court. She received her law degree from Arizona State University and has been a licensed Nevada lawyer since 1987. Before being selected as Discovery Commissioner in 2007, she primarily defended healthcare professionals.

Chris Beecroft received his undergraduate degree from UNLV and his JD from McGeorge School of Law. Chris was in private practice for 26 years, specializing in personal injury (plaintiff and defense), civil and business litigation, bankruptcy and real estate, and all forms of ADR (arbitration, mediation, early and late neutral evaluations). In 2007, Chris was appointed Family Court Discovery Commissioner and in August 2012 was appointed Civil Discovery Commissioner for certain departments within the Eighth Judicial District Court.

The Unanswered Question: What is the Standard of Review When Objecting to a Discovery Commissioner’s Report and Recommendations?

Discovery disputes are a fact of modern practice. After a discovery commissioner rules upon a dispute, one or more of the litigants might be dissatisfied with the ruling and could elect to object to it. As attorneys, we must evaluate the probability of a successful objection, which requires knowing the standard against which the objection will be evaluated. This leads to an unanswered question in state court: what is the standard of review a district court will apply to an objection to a discovery commissioner’s report and recommendations? This article explores potential answers.

Walk before you run: Will the court even need to consider the standard of review?
A variety of procedural problems often seem to determine the fate of the objection before the standard of review question is even addressed. First, was the order compelling the objectionable discovery stayed pursuant to EDCR 2.34(e)? “The commissioner may stay any disputed discovery proceeding pending resolution by the judge.”

A ruling by the discovery commissioner is effective and must be complied with for discovery purposes once it is made, orally or written, unless the party seeks a stay of the ruling pending review by the district court. Goodyear failed to seek a stay of the ruling or an expedited review by the district court prior to the time to comply with the ruling, and was therefore required to comply with the discovery commissioner’s directive. The failure to do so was tantamount to a violation of a discovery order as it relates to NRCP 37(b)(2).

In other words, if no EDCR 2.34(e) stay is granted, the parties are obligated to begin complying with the ruling. Without the stay, the problematic discovery may already be completed before the district court ever considers an objection to a discovery commissioner’s ruling. Unringing the bell, if at all possible, is extraordinarily difficult.

Second, did the objecting party preserve the issue? “In this opinion, we review our rule regarding the waiver of an issue on appeal that is not first raised in the district court. We expand that rule to include the situation where a party fails to raise an issue before the discovery commissioner and, instead, raises the issue for the first time before the district court.” Valley Health Sys., LLC v. Dist. Ct., 127 Nev. Adv. Op. 15, 252 P.3d 676, 677 (2011). Arguments not raised before a discovery commissioner may not be argued for the first time in the objection.

Finally, is the objection timely? Once a discovery commissioner executes the report and recommendations, the order is then served upon the parties and forwarded to the district court for approval. NRCP 16.1(d)(2) permits any party to file written objections to the recommendations, with or without citation to authorities, within 5 days of being served with the recommendations. Locally, EDCR 2.34(f) modifies this rule slightly because the court requires each firm to maintain a folder with the clerk of the court. “The report is deemed received 3 days after the clerk of the court or discovery commissioner designee places a copy in the attorney’s folder in the clerk’s office or 3 days after mailing to a party or the party’s attorney.” The rule then largely mirrors NRCP 16.1(d)(2), except that it arguably requires written authorities. “Within 5 days after being served with a copy, any party may serve and file specific written objections to the recommendations with a courtesy copy delivered to the office of the discovery commissioner. Failure to file a timely objection shall result in an automatic affirmance of the recommendation.” EDCR 2.34(f).

Running: What is the standard of review for the objection?
If the procedural requirements are satisfied, the objection may be heard on the merits and the standard of review question must be considered. NRCP 16.1(d) establishes the general parameters for resolving discovery disputes, but is silent as to the standard of review. NRCP 16.3, which creates the discovery commissioner position and generally establishes its powers and duties, is also silent. EDCR 2.34 also governs discovery disputes, but is silent as to the standard of review. Nor does it appear the Nevada Supreme Court has ruled explicitly on this topic.

Is the standard abuse of discretion? The party prevailing on the discovery motion would likely favor this standard. Furthermore, it does apply to review of orders concerning NRCP 37 sanctions. “Where the discovery sanctions are within the power of the district court, this court will not reverse the particular sanctions imposed absent a showing of abuse of discretion. Even if we would not have imposed such sanctions in the first instance, we will not substitute our judgment for that of the district court.” Young v. Johnny Ribeiro Bldg., 106 Nev. 88, 92, 787 P.2d 777 (1990). However, an order compelling the production of documents is not, alone, a sanction under NRCP 37. NRCP 37 is only invoked later if the order is not obeyed.

Is the standard de novo? This standard is likely favored by the objecting party, but would seem to defeat the purpose of utilizing discovery commissioners to divert most discovery related disputes away from the district court’s docket. Especially where non case-concluding motions are filed, seeking to compel the production of documents for instance, it would seem to undermine the authority of a discovery commissioner to simply start the process over in a district court. This concern may have been a contributing factor to the Nevada Supreme Court’s preservation ruling in Valley Health.

Is the standard something else? The Nevada Supreme Court has discussed the standard of review where case concluding discovery sanctions are imposed. If the sanction is “case concluding,” meaning the sanction results in the striking of an answer “both as to liability and damages,” Nevada utilizes “a somewhat heightened standard of review.” Bahena, 235 P.3d at 596.

What happens in federal court? Assuming a magistrate judge is hearing the discovery dispute, the standard of review is statutory. The district court “may reconsider any pretrial matter . . . where it has been shown that the [magistrate judge’s] order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). Federal courts routinely refer discovery matters for handling by magistrate judges and apply the clearly erroneous standard in reviewing the resulting recommendation. “The district court must affirm the magistrate judge’s order unless the district court is left with the ‘definite and firm conviction that a mistake has been committed.’” In re First Am. Corp. ERISA Litig., 263 F.R.D. 549, 561 (C.D. Cal. 2009) (quoting Burdick v. Comm’r, 979 F.2d 1369, 1370 (9th Cir. 1992)). This is consistent with FRCP 72(a), which concerns non-dispositive motions referred to a magistrate judge. If a party objects to the magistrate judge’s recommendation, the district judge may “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id.

It is notable that the standard of review changes for dispositive motions. There the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).

nough uncertainty exists to permit a good-faith debate as to which of these standards applies to routine discovery motions in state court such as those seeking to compel production of documents. The standard argued will vary depending upon the role of each party to the objection. A wary practitioner should be cognizant of them all.

Michael P. Lowry is a senior associate at the Las Vegas office of Thorndal Armstrong Delk Balkenbush & Eisinger where he practices in a variety of areas, including professional liability, premises liability, and transportation. Mr. Lowry is also the author of a riveting blawg dedicated to all things discovery, www.compellingdiscovery.com.

As a general rule, offers of compromise are inadmissible when offered to prove liability or the amount of a claim. NRS 48.105(1); FRE 408(a)(1). Evidence of conduct or statements made in compromise negotiations is likewise not admissible. NRS 48.105(1)(b); FRE 408(a)(2). Federal Rule of Evidence (FRE) 408, the federal analog of Nevada Revised Statute (NRS) 48.105, was developed to “encourage the resolution of problems through negotiation and settlement without the fear of having statements made during the negotiation process haunt a future legal proceeding.” Morrison v. Beach City LLC, 116 Nev. 34, 39, 991 P.2d 982, 985 (2000) (quoting Han v. Yang, 84 Haw. 162, 931 P.2d 604, 613 (Haw.Ct.App.1997)).

While NRS 48.105 and its federal counterpart generally preclude the admissibility of compromise offers and statements made in compromise negotiations, both set forth exceptions permitting admissibility when compromise offers or statements made in compromise negotiations are offered for “another purpose,” such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation of prosecution. NRS 48.105(2); FRE 408(b). However, the list of examples in NRS 48.015(2) and FRE 408(b) is illustrative, not exhaustive. U.S. v. Technic Services, Inc., 314 F.3d 1031, 1045 (9th Cir. 2002) overruled on other grounds by U.S. v. Contreras, 593 F.3d 1135 (9th Cir. 2010). This leaves litigants and courts alike in a quandary: under what circumstances are compromise offers or statements made in compromise negotiations properly admissible as being offered for “another purpose”?

What are compromise offers and statements made in compromise negotiations?
Before it can be decided whether evidence of an offer of compromise or a statement made in compromise negotiations is properly admissible for another purpose besides proving liability or the amount of a claim, it must first be determined whether the evidence at issue is in fact an “offer of compromise” or “statement made in compromise negotiations” within the scope of NRS 48.105 or FRE 408.

An offer of compromise is an offer by one party to settle a claim “where an actual dispute or a difference of opinion exists” at the time the offer is made. Davis v. Beling, 278 P.3d 501 (Nev. 2012); see also In re Marriage of Arkin, 438 N.E.2d 957, 963 (Ill. Ct. App. 1982) (holding that there must be an existing controversy.). Even when faced with a lawsuit, a promise to perform an already-existing contractual obligation is not an offer of compromise. Quinn v. White, 26 Nev. 42, 62 P. 995 (1900).

Likewise, statements made in compromise negotiations must be made as “a part of, and under the motivating influence of, compromise negotiations pending or contemplated at the time.” Myers v. Cohen, 67 Haw. 389, 396, 688 P.2d 1145, 1151 (Haw. 1984) (quoting 31A C.J.S., Evidence § 285 at 732 (1964)). If it is unclear whether a statement was intended to promote the negotiation of a settlement or to constitute a factual admission of liability, the statement is inadmissible. See, e.g., Tomasso Bros., Inc. v. October Twenty-Four, Inc., 602 A.2d 1011, 1014 (Conn. 1992)).

What constitutes “another purpose” within the exceptions of NRS 48.105(2) and FRE 408(b)?
Once it is determined that particular evidence is an offer of compromise or a statement made in compromise negotiations, a court is authorized to decide whether the evidence is offered for another purpose, and it should weigh the probative value of the evidence against the purpose of the rule, which is to encourage the settlement of disputes. Sterling Sav. Bank v. Citadel Dev. Co., Inc., 656 F.Supp.2d 1248, 1255 (D.Or. 2009); see also Reichenbach v. Smith, 528 F.2d 1072, 1074 (5th Cir. 1976) (whether to admit evidence for another purpose is within the discretion of the trial court). Negotiation evidence has been admitted when the probative value was high and admission would not be likely to discourage settlement of future disputes. Id. The rule’s spirit and purpose must be considered in its application. Central Soya Co. Inc. v. Epstein Fisheries, Inc., 676 F.2d 939, 949 (7th Cir. 1982).

In addition to the specifically-enumerated exceptions within NRS 48.105(2) and FRE 408(b), courts have determined that compromise offers and other evidence of settlement negotiations are admissible for other purposes in a wide variety of circumstances. For example, settlement agreements have been held admissible as evidence of notice to a litigant. See, e.g., U.S. v. Austin, 54 F.3d 394, 400 (7th Cir. 1995) (settlement agreement with government agency admissible as evidence that defendant was on notice that subsequent similar conduct was wrongful); Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir. 1987) (settlement of prior police brutality claim properly admitted as evidence that city was on notice of a developed practice of such conduct). Compromise offers and statements made in compromise negotiations also have been admitted to prevent jury confusion, to prove agency, to determine when a statute of limitations began to run, and to demonstrate numerosity in the context of class certification. B & B Hardware, Inc. v. Fastenal Co., 688 F.3d 917, 920 (8th Cir. 2012); Flores v. Anjost Corp., 284 F.R.D. 112, 124 (S.D.N.Y. 2012); Cox v. Mayan Lagoon Estates, Ltd., 734 S.E.2d 883, 888 (Ga. Ct. App. 2012); and Belton v. Fibreboard Corp., 724 F.2d 500 (C.A.Tex. 1984).

Evidence of compromise offers and settlement negotiations may be admissible to rebut evidence that an insurer acted in bad faith. In re Texas Farm Bureau Underwriters, 374 S.W.3d 651, 657 (Tex Ct. App. 2012). In addition, settlement discussions may be considered by a court as a factor in determining an attorney fees award. Ingram v. Oroudjian, 647 F.3d 925, 927–28 (9th Cir. 2011).

Impermissible uses falling outside the exceptions
While compromise offers and statements made in compromise negotiations have been held to be admissible in a wide variety of cases, there are also a number of disparate matters in which such evidence has been held inadmissible, and therefore not within the another purpose exception to the rule. For instance, evidence of settlement communications was held to be inadmissible for the purpose of demonstrating consent to a custody arrangement. Walker v. Walker, 701 F.3d 1110, 1117 (7th Cir. 2012). In addition, evidence that the parties had engaged in settlement discussions was held inadmissible as proof that “something was wrong.” Schwab v. Zajac, 823 N.W.2d 737, 745 (N.D. 2012).

In Davis v. Beling, 278 P.3d 501 (Nev. 2012), the Nevada Supreme Court recently held that offers of compromise are not admissible for the purpose of demonstrating a failure to mitigate damages, as “such evidence inescapably goes to the ‘amount’ of the claim.” Id. at 509. If evidence of compromise offers were admitted to show a failure of mitigation, then predictably, a substantial dispute would arise over whether the offer was reasonably refused, which is an outcome that NRS 48.105 was specifically intended to prevent. Id. at 509–10. Moreover, because it is common for attorneys to be closely involved in the parties’ settlement negotiations, “the admission of such evidence would inhibit the efficient administration of justice by spurring a rash of motions for disqualification of a party’s chosen counsel who would likely become a witness at trial.” Id. at 510 (internal citations omitted).

The exception to NRS 48.105 also does not encompass the use of an offer of compromise as evidence of failure to satisfy the jurisdictional limits of the district courts. Morrison, 116 Nev. at 985. Using offers of compromise to measure jurisdictional limits “would likely have an undesirable chilling effect on parties’ attempts to reach a settlement, because a plaintiff would fear . . . that a low offer might later be used to dismiss the case.” Id. at 984–85; but cf. Cohn v. Petsmart, 281 F.3d 837, 840 (9th Cir. 2002) (settlement offer relevant evidence of the amount in controversy).

The wide-ranging decisions of the courts grappling with the issue demonstrate that more often than not, the determination of whether a compromise offer or statement made in compromise negotiations is admissible will require a case-specific analysis. Guiding that analysis will be the spirit and purpose of NRS 48.105 and FRE 408, which are designed to promote the expeditious resolution of disputes through settlement negotiations.

Joel Z. Schwarz is an associate at the law firm of Gordon Silver, practicing primarily in complex commercial litigation, commercial landlord-tenant litigation, and civil appeals. He can be reached at 702-796-5555 or jschwarz@gordonsilver.com.

Purpose: To reduce cost to litigants and expedite resolution of appropriate civil cases.

Eligibility: All civil cases.
Voluntary—all parties must consent.
Can be a bench or jury trial. If jury, default number of jurors is 4 (unless good cause is shown to expand to 6).

Presiding Judge: Assigned District Judge or if parties have consented, the assigned Magistrate Judge; under certain circumstances and with leave of the Chief District Judge, the case may be assigned to a Senior District Judge or Recalled Magistrate Judge.

Timetable: Trial should be concluded within 150 days from the date the presiding judge is assigned.
The following time limits all run from the court’s approval of the short trial agreement (unless otherwise noted):

Within 7 days — exchange of FRCP 26 disclosures.

Within 21 days — appointment of presiding judge.

Within 30 days — parties must submit stipulated scheduling order and discovery plan pursuant to LR 26.

No later than 7 days before pretrial conference — parties to submit pretrial memorandum.

No later than 10 days before the short trial date — pretrial conference with presiding judge.

Within 171 days — trial (can be later if approved by presiding judge).

Within 30 days of conclusion of bench trial — judgment entered.

Time Limit on Trial: Each side allowed 9 hours unless otherwise stipulated and approved by the presiding judge. Case presentation for purposes of the time limit includes jury voir dire, opening statements, closing statements, presentation of evidence, examination and cross-examination of witnesses, including rebuttal.

Motion Practice: Presiding judge decides all motions unless the presiding judge is a District Judge who may assign discovery disputes to a Magistrate Judge.

Pretrial Conference:
Conducted no later than 10 days before trial. The presiding judge will rule on any motions or disputes including dispositive motions, motions to exclude evidence or witnesses or other pretrial evidentiary matters and jury instructions.

Evidence at Trial: To expedite the parties’ evidentiary presentations:

With the pretrial memorandum, the parties will create a joint evidentiary booklet including stipulated facts, photographs, diagrams and other evidence.

Parties are permitted to quote directly from depositions, interrogatories, requests for admission or any other evidence as stipulated.

Subject to objections lodged before trial commences, all reports, documents or other items that would be admitted upon testimony by a custodian of records may be admitted in evidence without necessity of authentication or foundation by a live witness.

Expert Witnesses:

Parties are not required to present oral testimony of experts and are encouraged to use written reports and declarations instead (including rebuttal reports and declarations).

If written reports or declarations are to be used, must notify the other side 30 days before pretrial conference, who may submit rebuttal reports or declarations 15 days before pretrial conference.

No voir dire of expert regarding qualification as an expert (any qualification issues will be addressed at the pretrial conference).

Appeals: Same as other civil cases, unless the parties expressly agree that the results of the short trial are binding, final and non-appealable.

Submitted for publication by Charles H. McCrea, Jr. McCrea is a shareholder with the Litigation Department of Lionel Sawyer & Collins. He has extensive experience representing clients in complex commercial litigation, corporate law, commercial transactions, business law, and gaming law. In August 2011, McCrea was appointed to serve a three-year term as a Lawyer Representative to the U.S. District Court for the District of Nevada.